■ Appeal from the Superior Court of Raw of Macon county, at Fail Term, 1842, his Honor Judge Pearson presiding-. This was an action of Trover for a horse. After the jury were impannelled, the plaintiff’s counsel stated, that he was surprized by the fact that a record from Burke Superior Court, which he expected to- offer in evidence, had no seal to the Clerk’s certificate, or the seal was too indistinct to be identified, and intimated an intention to submit to a nonsuit.
Decided 1842-12-05
Daniel, J.
¶1
This was an action of Trover, tried in Ma-
*46
Con Superior Court. The plaintiff deduced his title
to the
in controversy, under a purchase at a Sheriff's sale of the property of one B. Brittain. He produced a transcript a rec01'd of a judgment obtained in - Court of Burke against Brittain, and an execution issued on the same to the Sheriff of Macon, under which execution he purchased the horse. The plaintiff obtained a verdict. The defendant moved for a new trial, because the court permitted the transcript oí the record of the execution to be read in evidence, when it did not appear by the same that there had been a seal of Burke Court affixed to the original execution. The court overruled the motion, and, we think, very properly. The transcript of the record of Burke was proper evidence; the seal to the original execution, (when the execution is proved by a transcript,) must
•prima facie
be presumed to have been affixed, as the record, from which the transcript is taken, never contains a
fac simile
of the seal; and, besides, had there been such an objection as that insisted on by the defendant, it was incumbent on him to make it upon the trial. It is too late for him to raise it upon a motion for a new trial.
